EXHIBIT 10.2
RESTRICTIVE COVENANT AND AGREEMENT NOT TO DISCLOSE CONFIDENTIAL INFORMATION
AGREEMENT dated _________ __, 2006, by and between XXXXX XXXX, residing
at 00000 XX 00xx Xxxx, Xxxxx, Xxxxxxx 00000 ("Aoki") and BENIHANA INC., a
Delaware corporation, with offices at 0000 XX 00xx Xxxxxxx, Xxxxx, Xxxxxxx, (the
"Company") (the "Agreement").
P R E A M B L E :
WHEREAS, the parties hereto have separately agreed to terminate the
Employment Agreement dated September 1, 2003 between the Company and Aoki
("Employment Agreement"). Notwithstanding the termination of the Employment
Agreement, the parties agree that the provisions relating to disclosure of
confidential information and covenant not to compete contained in the Employment
Agreement shall, as hereinafter modified, continue to remain in full force and
effect until August 31, 2008.
NOW, THEREFORE, IT IS AGREED:
1. Aoki acknowledges that the Company possesses confidential
information, know-how, customer lists, purchasing, merchandising and selling
techniques and strategies, and other information used in its operations of which
Aoki has knowledge, and that the Company will suffer serious and irreparable
damage and harm if this confidential information were disclosed to any other
party or if Aoki uses this information to compete against the Company.
Accordingly, Aoki agrees that, without the consent of the Company's Board of
Directors, he shall not disclose or use any secret or confidential information
of the Company, including, without limitation, such business opportunities,
customer lists, trade secrets, formulas, techniques and methods of which Aoki
became informed during his employment, whether learned by him as an employee of
the Company, as a member of the Board of Directors or otherwise, and whether or
not developed by Aoki, unless such information shall be or become public
knowledge other than as a result of Aoki's direct or indirect disclosure of the
same.
Aoki further agrees that until August 31, 2008, he will not, directly or
indirectly, alone or with others, individually or through or by a corporate or
other business entity in which he may be interested as a partner, shareholder,
joint venturer, officer or director or otherwise, engage in the United States
(except as provided in the License Agreement dated May 15, 1995 between Benihana
National Corp., as licensor, and Benihana of Tokyo, Inc., as licensee, relating
to use of the Benihana trademarks in the State of Hawaii) in any "business which
is competitive with that of the Company or any of its subsidiaries" as
hereinafter defined or which business hires any persons who are presently
employed by the Company or a subsidiary of the Company, without the consent of
the Company's Board of Directors; provided, however, that the foregoing shall
not be deemed to prevent the ownership by Aoki of up to five percent of any
class of securities of any corporation which is regularly traded on any stock
exchange or over-the-counter
market. For the purpose of this Agreement, a "business which is competitive with
the business of the Company or any of its subsidiaries," shall include only the
operation of restaurants selling Japanese, or other Asian food, or restaurants
of a type then being operated by the Company, or any of its subsidiaries or
franchisees.
2. The Company agrees that, notwithstanding the foregoing, Aoki
shall be permitted to own, operate and manage the Sushi Doraku restaurants
located at 0000 Xxxxxxx Xxxx, Xxxxx Xxxxx, Xxxxxxx 00000, 0000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxx 00000 and any other Sushi Doraku restaurants to be located in
the State of Hawaii. In the event Aoki desires to have any interest, direct or
indirect, in any additional Sushi Doraku restaurants to be opened prior to
August 31, 2008, the prior written consent, not to be unreasonably withheld, of
a committee of the Company's Board of Directors consisting of at least one
independent director shall be required. The parties agree that one of the
factors to be considered in obtaining the approval of the Board of Directors
shall be the proximity of any new Sushi Doraku location to an existing or
proposed site for a RA Sushi restaurant or other restaurant then being operated
by the Company or any of its subsidiaries or franchisees. The Company and Aoki
further agree that the prior written consent of the Company shall not be
required for Aoki to establish Sushi Doraku restaurants in Dade County, Florida
provided such new restaurants are not located within a seven (7) mile radius of
any existing or proposed sites for a RA Sushi restaurant or other restaurant
then being operated by the Company or any of its subsidiaries or franchisees.
3. For the avoidance of doubt the Company agrees that the operation
of such Sushi Doraku restaurants in the manner in which the current Sushi Doraku
restaurant is operated shall not constitute a violation of this Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Restrictive Amendment the date and year first above written.
Miami, Florida BENIHANA INC.
By:
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Xxxx Xxxxxxxx, President
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Xxxxx Xxxx
